The New York Times, May 22, 2006, Monday

Copyright 2006 The New York Times Company
The New York Times

May 22, 2006 Monday
Late Edition - Final

SECTION: Section B; Column 5; Metropolitan Desk; Pg. 1

HEADLINE: City Workers' 9/11 Claims Meet Obstacles

BYLINE: By SEWELL CHAN; Diane Cardwell contributed reporting for this article.

BODY:
Mayor Michael R. Bloomberg's decision to intervene in the case of a former deputy mayor who believes that he became severely ill from working around ground zero after the Sept. 11 attack has cast unwanted attention on the city's handling of 9/11 workers' compensation cases. Scores of such cases -- the city could not say precisely how many -- continue to drag on nearly five years after the attack.
Advocates for public employees who worked in Lower Manhattan on Sept. 11, 2001, said that before the mayor stepped in, the case of the former deputy mayor, Rudy Washington -- who had his initial claim challenged by the city, and then won a judge's order granting him health care benefits only to see that order, too, appealed by the city -- was typical.
''Workers going through this process are being fought tooth and nail, while justice and humanity call for providing them with the medical treatment that they need,'' said Joel A. Shufro, executive director of the New York Committee for Occupational Safety and Health, a union-backed nonprofit educational organization that has often criticized the city's handling of compensation claims.
Dr. Robin Herbert, an occupational-medicine specialist and incoming director of the World Trade Center Health Effects Treatment Program at Mount Sinai Medical Center, said the workers' compensation program was one of the most common sources of complaint among her patients.
''There's no question that our patients who have physical and mental health consequences of the World Trade Center disaster have had their psychological distress worsened by the difficult interactions with the workers' compensation system,'' she said.
William D. Dahl, a paramedic who worked for the Fire Department for 21 years until a city panel allowed him to retire on disability last month, has been fighting for long-term health care coverage.
Mr. Dahl, 42, who was an emergency responder near ground zero on 9/11, filed a pre-emptive compensation claim immediately after the attack, but he did not develop symptoms requiring treatment until a year later. Since then sinusitis, tracheitis, gastroesophageal reflux disease, and synovial sarcoma, a rare cancer, have been diagnosed, he said. He coughs continually.
On April 17, the New York City Employees' Retirement System granted Mr. Dahl a three-quarters disability pension. However, a month later, the city's Law Department told Mr. Dahl that it would challenge his claim for health care benefits under the workers' compensation system. Each side has presented doctors who disagree on the severity of Mr. Dahl's illnesses.
Mr. Dahl, who lives in Seaford, N.Y., said he could not understand how one arm of the city -- the pension system -- could certify his World Trade Center-related disabilities while another arm -- the Law Department -- has questioned how sick he is. ''They have fought me every step of the way,'' he said of the city's lawyers.
The state-run system is intended to provide workers who are injured or disabled on the job with medical assistance and fixed weekly payments -- two-thirds of wages, up to $400 a week -- to replace lost pay, loss of the use of a body part or facial disfigurement.
Although the system was set up to eliminate the need for litigation, compensation cases can be as protracted and adversarial as lawsuits. Of the 313,102 claims resolved in New York State in 2004, 55 percent involved a hearing at which evidence was provided, and the rest were resolved informally.
Most private employers rely on insurance companies to identify and challenge claims that might be fraudulent, but some of the largest employers, like the City of New York, are self-insured and decide on their own when to challenge claims. Industry experts have estimated that 10 to 20 percent of workers' compensation claims may be baseless.
One reason for the contentiousness is that the nature of workplace injuries has changed. Over the years, cuts, smashed feet and falls have become less common, replaced by injuries like back strain in which the severity and cause are more difficult to determine, said Robert S. Smith, a professor of labor economics at the Cornell University School of Industrial and Labor Relations.
''I don't think the system is well designed for diseases that have long latency periods,'' he said.
As of last week, compensation claims had been filed by or on behalf of 1,436 employees of the City of New York and the Metropolitan Transportation Authority citing deaths, injuries or illnesses caused by 9/11, according to the State Workers' Compensation Board. That figure does not include claims by police officers, firefighters and sanitation workers, who are covered under separate workplace-injury programs.
In general, more than 90 percent of the 9/11 cases that have been brought to the board are considered ''resolved,'' according to a spokesman for the board, Jon A. Sullivan, but neither the state nor the city could say what proportion had been accepted or rejected. All workers' compensation cases are sealed.
The Law Department, which represents the city in workers' compensation cases, said it could not discuss the cases of Mr. Dahl or Mr. Washington and also declined to discuss how it handles compensation cases generally.
Mr. Washington, 51, was a top official during the eight years of Rudolph W. Giuliani's tenure as mayor. He is believed to be the highest-ranking city employee to file an injury claim stemming from the attack. He filed his claim in December 2004, more than a year after the usual two-year deadline for filing compensation claims.
The city challenged not only the timeliness of the claim, but also the link between 9/11 and the ailments Mr. Washington reported. He testified and presented medical reports at four hearings.
In March of this year, an administrative law judge sided with Mr. Washington after finding that he met a narrow exception to the deadline. In April, the city appealed the judge's ruling.
On Thursday, Mr. Bloomberg said that he had only recently learned about the appeal and that he believed it was based ''on a technicality.'' He added, ''I thought that it was wrong.'' City lawyers are scheduled to meet on Tuesday with Mr. Washington's lawyer, Robert E. Grey.
A recent report on the workers' compensation program, prepared by the Law Department, lists 47 new 9/11 claims that were received in 2005, suggesting that many employees are continuing to pursue claims well after the usual two-year deadline.
Neither the mayor nor Gov. George E. Pataki addressed last week the broader complaints by 9/11 claimants about the workers' compensation system. Mr. Pataki said only that the system's judges rely on ''professional judgment'' in rendering decisions.
''I'm sure they understand the implications of the tremendous sacrifice that thousands of New Yorkers made, risking their lives on the pile after those towers came down,'' Mr. Pataki said on Thursday. ''So they had to obviously follow the medical conclusions that are reached by the professionals, and I'm confident they're doing it.''
However, those statements have not quelled growing criticism of the system, from both ends of the political spectrum.
''Mayor Bloomberg made the right decision in the end, but it shouldn't take front-page media coverage and high-powered friends to convince our leadership to do the right thing for those who are suffering,'' said Jerrold L. Nadler, a Democratic congressman who has called on the state to waive the two-year deadline to file most compensation claims.
Joseph J. Lhota, a Republican business executive who was a top deputy in the Giuliani administration, said he believed the Law Department was making it much harder for civilian workers to obtain benefits than uniformed police officers and firefighters. ''Why are we treating a civilian city worker different than a uniformed city worker?'' he asked. ''I think the administration is taking advantage of the fact that it can.''
Friends of Mr. Washington -- and Mr. Bloomberg himself -- have rejected the notion that he received any special treatment.
Mr. Shufro, the occupational health advocate, said he hoped that Mr. Washington's case would lead to more awareness of city employees in similar situations.
''We have people who, unlike Rudy Washington, don't have friends in high places and are losing their houses and having their kids withdraw from college because they can't get medical care and wage-replacement benefits, paltry as they are, to sustain themselves,'' Mr. Shufro said.